Article excerpt

The idea that abortion rights are central to protecting women's health will hardly come as a surprise to most reproductive rights advocates. For example, much of the recent litigation challenging states' legal restrictions on abortion has centered around the requirement of a health exception--that is, around the question of whether legislation regulating abortion must contain an exception for cases where the regulated procedure is necessary to protect the woman's health. (1) Reproductive rights organizations also often espouse the language of "women's health." (2) Indeed, those organizations, along with numerous other NGOs and some scholars, advocate greater recognition of the fact that reproductive health care in all of its manifestations--not just access to abortion and contraception, but also access to safe obstetric and gynecologic care, adequate prenatal nutrition and care, and sexually transmitted disease prevention--is an important part of women's health care in general. (3) At the same time, however, feminist legal scholars have largely shied away from discussing abortion as primarily a medical procedure, instead emphasizing the idea of abortion as an intensely personal decision and as a right that is essential to women's equal citizenship. This framework underscores the concepts of decisional autonomy and equality underpinning the constitutional right to choose abortion. Although there are valid reasons for the emphasis taken by those reproductive rights scholars, this Article argues that it may be time to consider embracing an approach that emphasizes abortion as a form of health care.

If abortion is placed in the framework of health care, the right to access abortion may then be considered to be an aspect of the right to health. This right to health, moreover, should be conceived as a negative right, not as a positive right. Although the distinction between positive and negative rights is not always airtight, (4) it may be roughly described as follows. A positive right is generally considered to be an entitlement to something--a right to call on the government to provide, at government expense, a particular public good, such as shelter, education, or medical care. (5) Such rights are sometimes referred to as "socio-economic rights," and they are recognized as constitutional rights in a number of foreign countries. (6) International law and numerous national constitutions, moreover, specifically recognize a right to health, which is in most instances understood as a positive entitlement to health care. (7) Negative rights, by contrast, are simply rights to be free of governmental interference with one's decision to do something; they are "negative checks on government, preserving a sphere of private immunity." (8) The United States Constitution is usually understood to confer only negative rights; this understanding is largely based on a perception that negative rights fit best within the paradigm of classical liberalism, that they are more easily enforceable by courts than positive rights, and that their recognition does not generally have major budgetary implications. Consequently, the judicial enforcement of negative rights does not raise the separation of powers concerns that might be raised by court-ordered rearrangement of legislative priorities and substantial monetary outlays to provide certain goods to the public. (9) A negative right to health could thus be understood as a right against government interference in health care access and medical decision-making, rather than a right to government-provided medical services.

As this Article demonstrates, the Supreme Court's abortion jurisprudence suggests the existence of a negative right to health, but this notion has not yet been fully explored by courts or by advocates. Thus, although the Supreme Court has not yet explicitly embraced the notion of a right to medical decision-making autonomy or a right to health, it is a concept whose time has come. …

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